Access to Information Requests and Parliamentary Privilege

Remarks by the Information Commissioner of Canada

Standing Committee on Procedure and House Affairs

Thursday, November 22, 2012

CHECK AGAINST DELIVERY

Thank you for asking me to appear before you today. I have been following the Committee’s work on this matter as I was notified of the application to the Federal Court that triggered the study before your committee. I welcome this opportunity to provide information to the Committee about the Access to Information Act, which I hope, may assist the Committee in its deliberations.

Mr. Chair, how access to information rights intersect with parliamentary privilege is a complex matter and I do not purport to be an expert in the field of constitutional law or parliamentary privilege. My representations are drawn from my perspective as the independent oversight on disclosure decisions of government institutions under the Access to Information Act.

As Information Commissioner, I have a statutory duty to investigate any complaint made in relation to requesting or obtaining access to records under the Access to Information Act. 
The Act contains a number of exemptions and exclusions upon which disclosure may, or in some instances, must be refused.  These include, exemptions for personal information, for information that could reasonably be expected to threaten the safety of individuals, information that is an account of consultations or deliberations involving government employees, and information protected by solicitor-client privilege. However there is not currently an exemption or exclusion in the Act addressing explicitly parliamentary privilege. 

The Act also provides that a request must be responded to within 30 days. This period may be extended for a “reasonable period of time” to consult other government institutions or third parties in two circumstances:

First, an institution may consult a third party if “consultations are necessary to comply with the request”; the validity of such extensions (including the reasonableness of the length and the necessity of the consultation) is considered on a case-by-case basis by my office.   Where such consultations are conducted, there is no recourse set out in the Act should the institution disagree with the recommendations made by the consulted third party (or government institution)

Second, a government institution may extend the 30-day response period to consult a third party when the record at issue may contain third party information that is confidential commercial technical or financial information or where the disclosure of the information could result in injury to contractual negotiations or the competitive position of a third party.  The third-party consultation process set out in the Act has strict statutory timelines and provides a specific judicial recourse should the institution not agree with the response of the third party to the consultation.  As an aside, it is not readily apparent that the type of information that may be protected by parliamentary privilege would qualify as the type of primarily commercial information that is protected under section 20.   

Given that the Act is silent with respect to parliamentary privilege, its intersection with access to information rights raise a number of pragmatic issues:

  1. In the absence of a specific statutory provision for parliamentary privilege under the Act, there is currently no obligation for government institutions to consult Parliament prior to making a disclosure decision. This means that there is no way for Parliament to know whether information that could be protected under parliamentary privilege is being identified as such or released.
  2. There is no process for government institutions to determine who has the authority to invoke or waive parliamentary privilege. 
  3. In the face of an assertion of parliamentary privilege, government institutions are faced with a dilemma because there are no specific exemptions or exclusions dealing with parliamentary privilege under the Act.
  4. If the assertion of parliamentary privilege is the basis for not releasing information to a requester, is the decision to refuse disclosure by a government institution a valid one under the Act?
  5. If the assertion of parliamentary privilege is the basis for not releasing information to a requester but the government institution uses other exemptions or exclusions to withhold the information, what is the impact on the requesters’ rights?  Would this information have been provided to the requester in the absence of the assertion? How does this impact on transparency and the ability of my office to effectively review government decisions to withhold information?

These are only a few questions that come to mind.

In my view, to best way to protect requesters' rights and to ensure transparency, accountability and effective oversight, would be to amend the Act to cover the administrative records under the control of Parliament while adding a specific exemption to deal with parliamentary privilege. This amendment should also clarify who has the authority to assert the privilege for the purposes of the Act. Both the Standing Committee on Justice in 1986 and the Access to Information Review Task Force (2002) made this recommendation.

Internationally, the UK Freedom of Information legislation applies to Parliament and exempts records if their disclosure would infringe the privileges of Parliament.  In Australia, the Freedom of Information Act specifically addresses the question of parliamentary privilege.  Within Canada, Alberta, Prince Edward Island and Newfoundland and Labrador have an exemption for parliamentary privilege. 

In closing, let me thank you, again, for inviting me to appear before you this morning. I am ready to take your questions.

Handout: Parliamentary Privilege and Access to Information - Jurisdictional Chart
Juridisction Parliament subject to FOIA Parliamentary Privilege - exempted from the FOIA
Australia No. Yes. Section 46 of the Freedom of Information Act 1982 46. A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown: (...) (c) infringe the privileges of the Parliament of the Commonwealth or of a State or a House of such a Parliament or (…)
United Kingdom Yes. Yes. Section 34 of the Freedom of Information Act 2000 34. (1) Information is exempt information if exemption is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. (3) A certificate signed by the appropriate authority certifying that exemption is required for the purpose of…
Alberta No, but it does apply to the Legislative Assembly Office. Yes. Section 27(1) of the Freedom of Information and Protection of Privacy Act 27. (1) The head of a public body may refuse to disclose to an applicant:information that is subject to any type of legal privilege, including (…) parliamentary privilege. (3) Only the Speaker of the Legislative Assembly may determine whether information is subject to parliamentary privilege.
Ontario Yes, but only in respect of records of reviewable expenses and in respect of the personal information contained in those records. No specific mention.
Québec Yes. No specific mention, but s.34 of An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information 34. No person may have access to a document from the office of a member of the National Assembly or a document produced for that member by the services of the Assembly, unless the member deems it expedient. The same applies to a document from the office of the President of the Assembly or of a member of the Assembly contemplated in the first paragraph of section 124.1 of the Act respecting the National Assembly (chapter A-23.1) or a minister contemplated in section 11.5 of the Executive Power Act (chapter E-18)…
Prince Edward Island Yes for officers of the Legislative Assembly, but not for the Speaker’s office or the offices of Members of the Assembly. Yes. Section 25(1) of the Freedom of Information and Protection of Privacy Act 25. (1) The head of a public body may refuse to disclose to an applicant (a) (a) information that is subject to any type of legal privilege, including (…) parliamentary privilege (3) Only the Speaker of the Legislative Assembly may determine whether information is subject to parliamentary privilege.
Newfoundland and Labrador Yes. Yes. Section 30.1 of the Access to Information and Protection of Privacy Act 30.1 The Speaker of the House of Assembly or the officer responsible for a statutory office shall refuse to disclose to an applicant information (a) where its non-disclosure is required for the purpose of avoiding an infringement of the privileges of the House of Assembly or a member of the House of Assembly;